Washington State Legislature v. Inslee

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON NOVEMBER 10, 2021 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON NOVEMBER 10, 2021 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

WASHINGTON STATE LEGISLATURE, NO. 98835-8

Respondent, EN BANC

v. Filed: November 10, 2021

THE HONORABLE JAY INSLEE, in his official capacity as Governor of the State of Washington,

Appellant.

GORDON McCLOUD, J.—Washington’s constitution permits the governor

to veto whole bills, “entire section[s]” of bills, and “appropriation items.” WASH.

CONST. art. III, § 12. In this case, we are asked to determine whether Governor

Inslee exceeded this constitutional authority when he vetoed a single sentence that

appeared seven times in various portions of section 220 of ESHB 1160, 1 the 2019

transportation appropriations bill. Section 220 appropriated moneys to the

Washington State Department of Transportation (WSDOT) for public

transportation-related grants. The vetoed sentence (the “fuel type condition”)

1 ENGROSSED SUBSTITUTE H.B. 1160, 66th Leg., Reg. Sess. (Wash. 2019). No. 98835-8

barred WSDOT from considering vehicle fuel type as a factor in the grant selection

process.

Governor Inslee argues that the fuel type condition constituted a complete

“appropriation item” and that such complete appropriation items are subject to

gubernatorial veto. In the alternative, he argues that the fuel type condition violated

article II, section 19’s single subject and subject-in-title requirements and article II,

section 37’s bar on amendment without setting forth the amended statute in full.

The legislature counters that the fuel type condition did not constitute a complete

appropriation item and, hence, that it was not subject to gubernatorial veto; it also

argues that the fuel type condition complied with article II, sections 19 and 37. The

trial court entered summary judgment orders in favor of the legislature.

Like all cases involving the veto power, “[t]he importance of the case before

us is that it deals directly with one of the cardinal and fundamental principles of the

American constitutional system, both state and federal: the separation of powers

doctrine.” Wash. State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 674,

763 P.2d 442 (1988). It requires this court to step into its “historical, constitutional

role” to “delineate and maintain the proper constitutional balance between the

coordinate branches of our State government with respect to the veto.” Wash. State

Legislature v. Lowry, 131 Wn.2d 309, 313, 931 P.2d 885 (1997). And it requires us

to embrace our duty, as the judiciary, to “‘“say what the law is,”’ even when that

2 No. 98835-8

interpretation serves as a check on the activities of another branch.” In re Salary of

Juvenile Dir., 87 Wn.2d 232, 241, 552 P.2d 163 (1976) (citations omitted) (quoting

United States v. Nixon, 418 U.S. 683, 703, 94 S. Ct. 3090, 41 L. Ed. 2d 1039

(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803))).

We now affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2019, the Washington Legislature passed ESHB 1160, titled “AN ACT

Relating to transportation funding and appropriations.” In section 220, the

legislature appropriated moneys to WSDOT to issue transportation-related grants,

subject to a number of “conditions and limitations.” Section 220 first lists six

accounts and the amount of moneys appropriated from each. In the 15 numbered

paragraphs that follow, the bill specifies that certain amounts of the total

appropriation must be used “solely” for nine specific grant programs. ESHB 1160.

With regard to seven of those nine grant programs, the bill mandates that “Fuel

type may not be a factor in the grant selection process.” LAWS OF 2019, ch. 416,

§220; ESHB 1160, § 220(1)(a), (b), (2), (3)(a), (5)(a), (7), (9) (the “fuel type

condition”). Governor Inslee vetoed this fuel type condition each of the seven

times it appeared.

ESHB 1160, as enacted by the legislature and partially vetoed by the

governor, became effective May 21, 2019. The legislature filed a declaratory

3 No. 98835-8

judgment action seeking declarations that the governor’s vetoes exceeded his veto

authority under article III, section 12 of the Washington Constitution and that the

legislature’s inclusion of those fuel type conditions in section 220 complied with

the Washington Constitution. Clerk’s Papers (CP) at 1 (Compl. for Declaratory J.).

The governor responded that his veto was valid and constitutional, and

counterclaimed that even if his veto was invalid, the court should still strike the

fuel type condition because it violates article II, sections 19 and 37 of the state

constitution. CP at 9-10 (Answer to Compl. for Declaratory J.).

On cross motions for summary judgment, the superior court ruled for the

legislature. CP at 187 (Order Granting Legislature’s Mot. for Summ. J. & Denying

Governor’s Mot. for Summ. J.). It concluded that the vetoes exceeded the

governor’s article III, section 12 authority because the fuel type condition was not

a complete “separate appropriation item[].” Verbatim Report of Proceedings (Jun.

19, 2020) (VRP) at 28. It also concluded that the fuel type condition did not violate

article II, sections 19 and 37 because it was “not substantive legislation or law and

does not directly conflict with existing statutes.” Id. at 28-29. Governor Inslee

appealed directly to this court, and we retained the case for decision.

STANDARD OF REVIEW

We review a trial court’s orders on summary judgment de novo. Enter.

Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 551, 988 P.2d 961 (1999).

4 No. 98835-8

“Where, as here, the parties do not dispute the material facts, this Court will affirm

an order on summary judgment if the moving party is entitled to judgment as a

matter of law.” Id. at 551-52. This case raises issues of constitutional

interpretation, which we also review de novo. State v. MacDonald, 183 Wn.2d 1,

8, 346 P.3d 748 (2015).

ANALYSIS

I. UNDER OUR PRECEDENT, THE GOVERNOR’S VETO OF THE FUEL TYPE CONDITION EXCEEDED HIS VETO POWER UNDER ARTICLE III, SECTION 12

The state constitution empowers the governor to veto whole bills, “entire

section[s]” of bills, and “appropriation items.” WASH. CONST. art. III, § 12. It is

clear that the sentence “Fuel type may not be a factor in the grant selection

process” does not comprise a whole bill or an “entire section” of a bill. Id. As a

result, the governor’s veto of this sentence is valid only if the sentence comprised a

whole “appropriation item.” Id.

We have observed that “[t]here is no more difficult and controversial aspect

of relations between our branches of government than the Governor’s use of the

veto.” Lowry, 131 Wn.2d at 312. Because of the magnitude of the interests at stake,

“[t]he [Washington] Supreme Court must not abdicate its constitutional duty to act

as an impartial referee of constitutional disputes between the legislative and

executive branches of government in cases involving the gubernatorial veto.” Id. at

5 No. 98835-8

330-31. We begin with a brief overview of the constitutional history of the

gubernatorial veto power in our state.

A. The history of the constitutional veto power shows a clear intent to carefully limit this extraordinary power

Since the 1889 adoption of the state constitution, article III, section 12 has

granted the governor the power to veto entire bills, subject to override by a two-

thirds majority of the legislature. 2 In addition to this general veto power, the

constitution has also granted the governor a “partial veto” power, which permits

him or her to veto smaller portions of bills, subject to the same two-thirds

legislative override. The original text of the 1889 Washington State Constitution

article III, section 12 read, in relevant part:

If any bill presented to the Governor contain several sections or items, he may object to one or more sections or items while approving other portions of the bill.

(Emphasis added.)

2 Article III, section 12 begins, “Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, which house shall enter the objections at large upon the journal and proceed to reconsider. If, after such reconsideration, two-thirds of the members present shall agree to pass the bill it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present, it shall become a law.”

6 No. 98835-8

This partial veto power serves two important purposes. First, it “is designed

to permit the Governor to disentangle issues so they will be considered on their

individual merits,” consistent with the other constitutional checks on legislative

“logrolling.” Lowry, 131 Wn.2d at 316-17 (citing Stephen Masciocchi, The Item

Veto Power in Washington, 64 WASH. L. REV 891, 892-93 & n.13 (1989)). Second,

the item veto in particular permits the governor to “excise unneeded ‘pork barrel’

programs or projects from an appropriations bill” to “achieve fiscal constraint and

to advance statewide rather than parochial fiscal interests.” Id. at 316.

When the governor exercises this veto power, he or she acts in a limited

legislative capacity. Wash. State Grange v. Locke, 153 Wn.2d 475, 486-87, 105

P.3d 9 (2005) (citing Hallin v. Trent, 94 Wn.2d 671, 677, 619 P.2d 357 (1980);

Wash. Ass’n of Apt. Ass’ns v. Evans, 88 Wn.2d 563, 565, 64 P.2d 788 (1977)). This

has led to conflicts between the legislature and the executive over the scope of the

veto power. In “the 1950s, 1960s, and early 1970s, governors increasingly vetoed

items that were less than entire sections of nonappropriation bills”—sometimes

excising portions as small as clauses within sentences. 3 Id. (citing Motorcycle

3 An oft-cited example of this practice is discussed in Apartment Associations, 88 Wn.2d 565. In the events leading up to this case, then-Governor Evans vetoed portions of the Residential Landlord-Tenant Act of 1973, ch. 59.18 RCW, ranging from full paragraphs to clauses within sentences. The effect of the vetoes was to “completely rewrite portions of the legislation” and make the overall bill favor tenants far more strongly than the original bill had done. Lowry, 131 Wn.2d at 317. Applying the later

7 No. 98835-8

Dealers, 111 Wn.2d at 671-72). This practice “resulted in part from the decisions

of this court in Cascade Tel. Co. v. State Tax Comm’n, 176 Wash. 616, 30 P.2d

976 (1934) (holding that a ‘section’ in the original Const. art. 3, § 12 would be

construed to mean any portion of a bill with separate, distinct and independent

subject matter), and State ex rel. Ruoff v. Rosellini, 55 Wn.2d 554, 348 P.2d 971

(1960) (holding that an ‘item’ under original Const. art. 3, § 12 was not limited to

matters in an appropriation bill).” Motorcycle Dealers, 111 Wn.2d at 671.

This “greatly expanded use of the partial veto” led to a constitutional

amendment known as Senate Joint Resolution (SJR) 140. Id. at 672. The

“Statement for” SJR 140 in the voters’ pamphlet made clear that the amendment

was designed to limit the governor’s partial veto power:

Washington is the only state in the nation in which the Governor exercises practically unlimited power to remove portions from laws passed by the Legislature. This “item veto” power has been interpreted by recent Governors to apply to any element of a bill down to a single word.

It empowers our Governors to act in effect as an unseparated third house of the Legislature to alter measures substantially prior to signing them into law. This is contrary to the grant of authority allowed our nation[’s] Presidents under the Federal Constitution—which is to reject entire pieces of legislation by veto, not to change them.

SJR 140 is a moderate compromise proposal passed with bipartisan support. It will not completely eliminate this unparalleled power, but limit it

discarded affirmative-negative test, this court held that Governor Evans’ vetoes were invalid. Apt. Ass’ns, 88 Wn.2d at 573.

8 No. 98835-8

to the veto of sections of bills as well as entire bills, and even provides that budget bills would still be subject to the item veto.

Id. (quoting SJR 140, Official Voters Pamphlet (General Election 1974)).

SJR 140 passed in 1974 and became the 62d Amendment to the Washington

Constitution. The amendment added language limiting the partial veto power, such

that the relevant portion of the state constitution’s article III, section 12 currently

reads:

If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items while approving other portions of the bill: Provided, That he may not object to less than an entire section, except that if the section contain one or more appropriation items he may object to any such appropriation item or items.

(Most emphasis added.) The amendment also granted the legislature the power to

reconvene after adjournment of the regular session “solely to reconsider any bills

vetoed” and to override any such vetoes by a two-thirds majority. Id. Thus, the

governor currently has the power to veto an entire bill, one or more “entire

section[s]” of a bill, and one or more “appropriation items” within a bill.

Veto-related litigation both before and after the 62d Amendment has mostly

addressed the scope of the “section” veto. Our early, preamendment cases

emphasized that the decision about what constitutes a “section” falls within the

province of the judiciary, not the legislature. E.g., Apt. Ass’ns, 88 Wn.2d at 565-66

(discussing Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 86, 109 P. 316

9 No. 98835-8

(1910), in which court applied “affirmative-negative” test, premised on the idea

that “the veto power must be exercised in a destructive and not a creative manner,”

meaning that a veto that had the effect of “reach[ing] a new or different result from

what the legislature intended” was invalid); Cascade Tel. Co., 176 Wash. at 619

(applying “separate subject” test under which the meaning of “section” was not

“always” limited by the “artificial construction of the legislative measure”; instead,

a “section” constituted any portion of a bill containing separate, distinct, and

independent subject matter).

The judiciary still retains the power to interpret the scope of the

constitution’s veto power. But the 62d Amendment signaled a change in how we

balance the powers of the other two branches. Specifically, we recognized that the

voters’ adoption of the amendment represented a “direct[] and forceful[]” reaction

to restore the balance of power between the executive and legislative branches and

to rein in perceived executive overreach. Motorcycle Dealers, 111 Wn.2d at 675.

The amendment’s text showed this: it “added a new express prohibition against

partially vetoing anything less than ‘an entire section’…of a nonappropriation

bill,” and it limited the item veto to appropriations bills. Id. at 673-74. We

therefore jettisoned the earlier “affirmative-negative” and “separate subject” tests

for evaluating the validity of vetoes on the ground that those tests were

“unworkable and subjective” and that they provided “no standards to predict

10 No. 98835-8

whether a veto will be perceived by the court” as valid or invalid. Wash. Fed’n of

State Emps., AFL-CIO, Council 28 v. State, 101 Wn.2d 536, 546, 682 P.2d 869

(1984) (abandoning affirmative-negative test); Motorcycle Dealers, 111 Wn.2d at

677-78 (quoting Wash. Fed’n, 101 Wn.2d at 546) (abandoning separate subject test

as “every bit as vague and uncertain as the affirmative-negative test”). We adopted

a test that was based more on deference to the legislature’s formatting decisions;

we explained, in part, that the older, rejected tests constituted “an intrusion into the

legislative branch, contrary to the separation of powers doctrine, and substitute[d]

judicial judgment for the judgment of the legislative branch.” Wash. Fed’n, 101

Wn.2d at 546 (internal citations omitted).

B. After the 62d Amendment, Lowry and Locke 4 held that we defer to the legislature’s designation of what constitutes a whole “appropriation item” subject to gubernatorial veto unless the legislature clearly attempted to circumvent that veto power

We first interpreted the term “appropriation item” against this historical

backdrop. First, in Lowry, the legislature challenged the governor’s exercise of two

types of partial vetoes: the “section” veto and the “appropriation item” veto. 131

Wn.2d at 313. In that case, the legislature had formatted 103 unrelated repealers as

subsections of one single section of a nonappropriations bill. Id. at 313-14. Then

Governor Lowry then vetoed several of these repealers. Id.

4 Wash. State Legislature v. State, 139 Wn.2d 129, 985 P.2d 353 (1999) (Locke).

11 No. 98835-8

We acknowledged that “‘[t]he Legislature’s designation of a section is

conclusive unless it is obviously designed to circumvent the Governor’s veto

power and is ‘a palpable attempt at dissimulation.’” Id. at 320-21 (quoting State ex

rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P.2d 1 (1933)). But we ruled that

the legislature had committed just such circumvention and dissimulation by

lumping all of those related repealers into a single section. We therefore declined

to defer to the legislature’s designation of a section and upheld the vetoes. Id. at

321.

At the same time, then Governor Lowry also vetoed several sentences of an

appropriations bill relating to state patrol vehicles, a state educational need grant

program, a statewide collocation program, and other matters. Id. at 313-15. As a

result, we had to determine whether each vetoed sentence constituted an entire

“appropriation item” subject to the constitutional veto power. Id. The Lowry court

answered this question by explaining that “any budget proviso with a fiscal

purpose contained in an omnibus appropriations bill is an ‘appropriation[] item’

under article III, section 12,” but that a veto of “anything less than the whole

proviso” is invalid. 5 Id. at 323 & n.8 (emphasis added).

5 The Lowry court distinguished between two types of budget provisos within appropriations bills: dollar and nondollar provisos. “Dollar provisos” contain language “conditioning the appropriation to an agency on compliance with legislative direction that

12 No. 98835-8

In determining the parameters of a “whole proviso,” Lowry said that we start

with the presumption that a “whole proviso” is equivalent to a “full subsection[] of

the section of an appropriations bill.” 6 Id. Applying this rule, the court upheld all

of the challenged appropriation item vetoes. Id. at 331.

We interpreted the scope of the appropriation item veto again, two years

later, in Locke, 139 Wn.2d 129. The Locke court acknowledged that the Lowry

court had not “adequately answer[ed] the question” of “what is a whole proviso?”

(to which the gubernatorial veto power extends)—so the Locke court provided

certain funds be spent or not spent, or the agency take or not take certain action.” Lowry, 131 Wn.2d at 314. “Nondollar provisos” also “condition an agency appropriation on the agency’s taking or not taking certain action,” but they “make[] no reference whatsoever to a monetary amount.” Id. at 325, 314. Lowry made clear that the governor can veto both types of budget provisos but only if the veto encompasses the “whole” appropriation item. Id. at 314, 323 & n.8. 6 The Lowry court made this statement in a footnote, which reads:

The budget provisos to which the Governor’s line item veto extends include full provisos to an appropriations bill, that is, full subsections of the section of an appropriations bill. We do not believe an “appropriation[] item” may be a sentence, phrase, letter, digit, or anything less than the whole proviso.

131 Wn.2d at 323 n.8. We agree in full with the first sentence of the footnote. It must be noted, however, that there is some tension between the second sentence of the footnote and Lowry’s outcome. Specifically, the Lowry court upheld the veto of several single sentences. Id. at 314 & n.2. Most of those sentences were also “full subsections”—but one was not. Id. at 324 (upholding veto of single sentence contained within larger subsection). And the Lowry court referred to the single vetoed sentence that appeared within a larger paragraph of text as, itself, a “subsection.” Id. We take this opportunity to clarify Lowry and emphasize that a sentence that is “less than [a] whole proviso” may not be vetoed as an appropriation item. Id. at 323 n.8.

13 No. 98835-8

further guidance on that subject. Id. at 142. Locke explained that just as this court

begins by deferring to the legislature’s designation of what constitutes an “entire

section” for the purpose of analyzing a section veto, this court must also begin by

deferring to the legislature’s designation of what constitutes a “whole”

“appropriation item” when analyzing an appropriation item veto. Id. at 141

(quoting Lowry, 131 Wn.2d at 320-21).

We again recognized that even though we “generally defer to the

Legislature as to its divisions within legislation, such deference is not absolute.” Id.

(quoting Lowry, 131 Wn.2d at 320-21). If the court determines that the

legislature’s designation of a subsection “‘is obviously designed to circumvent the

Governor’s veto power,’” then we “‘reserve the right to strike down such

maneuvers.’” Id. (quoting Lowry, 131 Wn.2d at 320-21). But only an obvious

attempt to circumvent the veto power will overcome deference to the legislature’s

designation of the scope of a whole appropriation item. Id. 7 Absent such obvious

7 The dissent suggests that this interpretation of Locke is “simply wrong” because it “defies Lowry” and “elevates dicta” from Lowry’s footnote 8 to the status of a legal holding. Dissent at 10, 8, 4. To the contrary, our reading is one that harmonizes Lowry and Locke, paying careful attention to how Locke itself interpreted Lowry. Locke very clearly applied the Lowry deference analysis to the appropriation item veto in that case, only proceeding to look more deeply into the “practical impact” of the language once it determined that “the specter of circumvention” had been sufficiently raised to justify not deferring to the legislature’s designation. Locke, 139 Wn.2d at 141. In this way, Locke extended the reasoning of Lowry by quoting, and then explicitly applying, the presumption of deference to the appropriation item veto context, where Lowry had only

14 No. 98835-8

manipulation, we defer to the legislature’s designation of a “full subsection” of an

appropriations bill as a “single and complete” proviso, “incapable of division.” Id.

The Locke court found that the legislature had committed just such

manipulation. The budget bill at issue there 8 appropriated moneys to the

Department of Social and Health Services (DSHS), subject to conditions set forth

in numbered subsections. Subsection (6) concerned childcare assistance; it

provided:

$73,129,000 of the general fund—federal appropriation is provided solely for child care assistance for low-income families in the WorkFirst program and for low-income working families as authorized in [EHB] 3901. All child care assistance provided shall be subject to a monthly copay to be paid by the family receiving the assistance.

Id. at 134. Subsection (6) was followed by three subparts labeled (a), (b), and (c),

which laid out in detail the monthly childcare assistance copayment schedule. Id. at

134-35. Governor Locke vetoed subparts (a), (b), and (c), but he did not veto the

last sentence of (6).

The Locke court struck down this veto as unconstitutional and based its

decision on two main factors. First, the court looked at the tortured history of the

discussed it in the section veto context. Id.; cf. dissent at 7. And Locke’s extension of that reasoning was eminently sensible, given the separation of powers issues at play in the budget context. See infra at 17.

8 LAWS OF 1997, ch. 454, § 204.

15 No. 98835-8

copayment provision. We explained that the provision had had “a life of its own”

before becoming part of subsection (6) of the appropriations bill: it had previously

been inserted into both an appropriations bill and a substantive bill, and the

governor had vetoed it both times. Locke, 139 Wn.2d at 147, 133-35. Given that

history, we found that subsection (6) “raise[d] the specter of [legislative]

circumvention sufficiently to disregard deferring to the Legislature’s designation of

(6) as a single and complete ‘subsection,’ incapable of division.” Id. at 141.

Next, we examined the text of the bill. We explained that “an examination of

the language in question and the operative effect of such language indicates the

nature of the proviso.” Id. at 143. We continued that the final sentence of

subsection (6) preceding the (a), (b), (c) subparts, combined with those three,

immediately following subparts, comprised a “single, whole . . . proviso” because

they all addressed the same specific subject and they all “naturally fit together.” Id.

at 144. We concluded that this language and history showed that the governor had

vetoed only subparts of a single, whole appropriations item. Id. The Locke court

therefore invalidated the veto.

Read together, Lowry and Locke hold that unless the legislature clearly

attempts to circumvent the governor’s veto power, we must presume that a

legislatively designated “full subsection” constitutes a whole, indivisible

appropriation item. We look at the history, text, and form of the legislation at issue

16 No. 98835-8

to decide whether the legislature has attempted such circumvention. And we

consider each of these factors against the backdrop of separation of powers

principles, particularly the fact that the legislature is the branch entrusted with the

power to control appropriations.

C. When interpreting the 62d Amendment, we also consider the fact that the legislature is the branch entrusted with the power to control appropriations

We have “expressly” declined to provide “bright-line definitions of

legislative or gubernatorial manipulation.” Lowry, 131 Wn.2d at 321. But we do

know that impermissible manipulation occurs if the legislation “clearly undermines

the powers of a coordinate branch of government.” Eyman v. Wyman, 191 Wn.2d

581, 604, 424 P.3d 1183 (2018) (plurality opinion) (discussing Lowry, 131 Wn.2d

at 320-32).

This is an objective inquiry that requires us to examine the history, form and

“practical impact” of the legislation at issue. Locke, 139 Wn.2d at 140-44; see also,

e.g., Lowry, 131 Wn.2d at 321-28; Eyman, 191 Wn.2d at 602-606 (manipulation

does not require “a subjective, conscious,” or bad-faith attempt by individual

legislators to undermine the executive’s veto power).

It also requires us to examine each of these factors in light of the

foundational constitutional principle of separation of powers, which “ensure[s] that

the fundamental functions of each coordinate branch of government remain

17 No. 98835-8

inviolate.” Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994). A

fundamental function of the legislature is “to set policy and to draft and enact

laws.” Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 506, 198 P.3d 1021

(2009); WASH. CONST. art. II, § 1. This means that the legislature holds the

“exclusive power of deciding how, when, and for what purpose public funds

should be used by governmental agencies in carrying on the state’s business.” State

ex rel. Decker v. Yelle, 191 Wash. 397, 400, 71 P.2d 379 (1937) (discussing WASH.

CONST. art. VIII, § 4). This power of the purse undergirds the legislature’s ability

to serve as a check on the power of the executive. Juvenile Dir., 87 Wn.2d at 242-

43 (“Legislative control over appropriations . . . [is an] example[] of direct control

by one branch over another.” (citing U.S. CONST. art. I, §§ 8, 9; WASH. CONST. art.

VIII, § 4; Train v. City of New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1

(1975))).

For that reason, judicial deference to the legislature’s decision on how to

format its bills—especially its appropriations bills—best comports with separation

of powers principles. Cf. Eyman, 191 Wn.2d at 596-97 (discussing enrolled bill

doctrine, which is rooted in separation of powers and which prevents judiciary

from inquiring into the process by which a bill was passed once the bill has been

certified by the legislature).

18 No. 98835-8

D. In this case, the governor fails to show a clear legislative attempt to circumvent the gubernatorial veto power; we therefore defer to the legislature’s designation of what constitutes a whole appropriation item in section 220

Here, the legislature argues that it neither circumvented the governor’s veto

power nor manipulated its usual formatting to achieve such impermissible

circumvention. The legislature concludes that we should therefore defer to its

designation of what constitutes a subsection containing the fuel type condition as a

whole, indivisible appropriation item. Resp. Br. of Wash. State Legislature (Resp.

Br.) at 14-15.

The decisions discussed above require us to address that issue by analyzing

the text, history, form, and practical impact of the legislation at issue in the context

of the legislature’s role as guardian of the state’s purse strings. Using that analysis,

we agree with the legislature: the governor has failed to show any legislative

intent to manipulate or circumvent the gubernatorial veto, so we must defer to the

legislature’s designation of what constitutes a single, whole appropriation item.

1. Section 220’s format shows no clear attempt to circumvent the governor’s veto power

Far from “alter[ing] the natural sequences and divisions of a bill,” the

formatting of section 220 is typical of the manner in which the legislature generally

formats appropriations bills. Lowry, 131 Wn.2d at 320-21. The section begins with

19 No. 98835-8

an appropriation of money from various accounts. ESHB 1160, § 220. The

subsections following, including the subsections containing the fuel type condition,

begin by appropriating money out of the general appropriation and continue by

listing further conditions on that money’s use. For example, section 220(9) reads,

“$2,000,000 of the multimodal transportation account—state appropriation is

provided solely for transit coordination grants. Fuel type may not be a factor in the

grant selection process.”

Section 220’s format differs markedly from the “clever formatting,” Eyman,

191 Wn.2d at 604, that showed legislative manipulation in Lowry. The formatting

in Lowry was exceptional. The legislature placed 103 unrelated repealers into one

section of a nonappropriations bill. That presented the governor with the Hobson’s

choice of vetoing the entire section in order to veto any individual repealer, or

vetoing none at all. Lowry, 131 Wn.2d at 319-20. Governor Inslee faced no such

choice in this case—he could have vetoed each single appropriation with its

associated single fuel type condition.

The governor argues that the legislature could have formatted the bill

differently: it could have placed the fuel type condition in its own designated

subsection and cross-referenced the portions of section 220 to which that condition

applied. The governor continues that the legislature’s failure to structure the bill in

this manner shows that it was attempting to “insulate its policy change from either

20 No. 98835-8

the Governor’s section or appropriation item veto authority.” Governor’s Opening

Br. at 36.

We disagree. This formatting choice did not nullify the governor’s partial

veto power. As stated above, the governor could still have exercised the

appropriation item veto in this case by vetoing a whole appropriation item, i.e., a

full subsection. He could have also vetoed the entire section. And if the fact that

the legislature could have structured a bill differently is enough, the deference

requirement would have no meaning; there is always another way to structure any

given bill. Second-guessing legislative drafting choices that way would violate

separation of powers principles and improperly invade the province of the

legislature. WASH. CONST. art. II, § 1.

2. Section 220’s history shows no clear attempt to circumvent the governor’s veto power Section 220’s history also differs markedly from the history of the vetoed

bill portions in Locke. In that case, the childcare copay proviso’s history showed

that the legislature was trying to repackage a twice-vetoed provision into an

“unvetoable” format. That history raised the “specter of circumvention”

sufficiently to convince the court to “disregard deferring to the Legislature’s

designation of (6) as a single and complete ‘subsection,’ incapable of division.”

Locke, 139 Wn.2d at 141.

21 No. 98835-8

By contrast, the fuel type condition in this case had never before been

enacted and had never before been vetoed. Instead, the fuel type condition was

inserted into and deleted from section 220 through a series of complex legislative

compromises that encompassed both ESHB 1160 and the “green grant program”

codified by E2SHB 2042.9 Resp. Br. at 35-37.

In other words, the history of the fuel type condition in this case shows the

normal internal workings of the legislative process. It is not comparable to the

legislature’s impermissible attempt to override the governor’s veto power by

reformatting and reinserting previously vetoed language into new bills. See id.

3. Section 220’s language and operative effect show no clear attempt to circumvent the governor’s veto power

Turning to the substance of the legislation, we “examin[e] . . . the language

in question and the operative effect of such language.” Locke, 139 Wn.2d at 143.

This examination convinces us that the fuel type condition, in isolation, does not

constitute a whole appropriation item. Id.

In Locke, subsection (6) provided:

$73,129,000 of the general fund—federal appropriation is provided solely for child care assistance for low-income families in the WorkFirst program and for low-income working families as authorized in [EHB] 3901. All child care assistance provided shall be subject to a monthly copay to be paid by the family receiving the assistance.

9 ENGROSSED SECOND SUBSTITUTE H.B. 2042, 66th Leg., Reg. Sess. (Wash. 2019).

22 No. 98835-8

Id. at 134. As discussed above, subsection (6) was followed by three subdivisions

labeled (a), (b), and (c); they provided a detailed monthly copay schedule. Id. at

134-35. We examined the operative effect of the language and determined that the

first sentence of (6) was a “dollar proviso” allocating the $73 million for childcare

assistance. Id. at 141. But the second sentence of (6) and the following

subdivisions (a)-(c) comprised a separate, indivisible, “whole . . . proviso” because

they addressed the same specific subject and “naturally fit together.” Id. at 144.

This court also emphasized the fact that the copayment proviso was “only

tangentially related to the $73 million appropriation, as it establishes criteria poor

families must meet in order to receive disbursements from DSHS out of the

appropriated sum designated in the first sentence of (6) for child care.” 10 Id. at 141-

42. It did not establish prerequisites to the agency appropriation.

By contrast, the fuel type condition in this case relates directly to the

appropriation amount that begins each subsection of section 220 in which the

condition appears. The fuel type condition restricts the way WSDOT can spend

those appropriated funds. This is the opposite of what the copayment proviso

accomplished in Locke. The Locke copayment proviso did not direct the manner in

10 See also Lowry, 131 Wn.2d at 325-26 (upholding vetoes of provisos that were similarly only tangentially related to any appropriation amount).

23 No. 98835-8

which the agency must expend the appropriated money at all; it related to a

different way of offsetting the cost of childcare. Id. at 144. Thus, following Locke,

the fuel type condition does not stand alone as a “single, whole . . . proviso.” Id.

Instead, it “naturally fit[s] together” with the relevant appropriation amount to

form a single, whole appropriation item that could have been vetoed in its entirety,

each time it appeared—or not at all. Id.

4. We therefore defer to the legislature’s designation of what constitutes a whole appropriation item in section 220

Separation of powers principles require us to begin with a presumption of

deference to the legislature’s designation of appropriation items. But it is a

fundamental duty of this court to interpret the constitution and to “act as an

impartial referee of constitutional disputes between the legislative and executive

branches of government in cases involving the gubernatorial veto.” Lowry, 131

Wn.2d at 330-31. Thus, when it is clear that the legislature’s method of formatting

legislation undermines the constitutional powers of the coequal executive branch

of government, this court must step in to protect the governor’s veto power. 11 Id.

11 In his veto message, Governor Inslee said the fuel type condition was “contrary to, and in direct conflict with” existing statutory law governing the criteria WSDOT must consider in selecting grant recipients and therefore amounted to an indirect amendment in violation of article II, section 37. CP at 53. The governor appeared to concede that the fuel type condition comprised less than an entire constitutional “appropriation item.” Id. at 53-54. But, in this “very rare and unusual circumstance,” Governor Inslee stated he “ha[d] no choice but to veto a single sentence in several subsections to prevent a

24 No. 98835-8

As Locke instructs, once such manipulation is shown, the court will decline to

defer to the Legislature’s formatting devices and will look deeper to determine the

parameters of whole appropriation items. Id.

The dissent repeatedly mischaracterizes our holding today as one that

somehow erodes or eliminates the constitutional distinction between the section

veto and the appropriation item veto. Dissent at 1, 2, 6, 9. But our holding today

does not, and cannot, do any such thing. Under the constitution, the governor

remains free to veto an “entire section” of a bill. WASH. CONST. art. III, § 12. The

governor also remains free to veto “one or more appropriation items,” id.—which

remain, necessarily, “something less than a full section of a bill.” Lowry, 131

Wn.2d at 322 (emphasis added); cf. dissent at 9. Our holding today simply

reaffirms that under this court’s precedent in Lowry and Locke, the scope of a

whole appropriation item is presumptively a full subsection—not a section—of an

constitutional violation and to prevent a forced violation of state law.” Id. at 54. However, as the legislature notes, the governor has no power to veto legislation simply because he believes it to be unconstitutional, unless that legislation falls into a category to which the veto power extends. Resp. Br. at 25. The parties do not argue that the governor’s concession has any effect on the issue before this court. We agree. Grange, 153 Wn.2d at 490-91 (citing Cascade Tel. Co., 176 Wash. at 621 (the giving of a reason by the governor in a veto message is for the information of the legislature only)). Instead, “the construction of the meaning and scope of a constitutional provision is exclusively a judicial function.” Phila. II v. Gregoire, 128 Wn.2d 707, 714, 911 P.2d 389 (1996). But if a budget bill contains impermissible substantive or amendatory law, the constitutional remedy of a challenge under article II, sections 19 and 37 remains open—and indeed, Governor Inslee made such a challenge here. See Lowry, 131 Wn.2d at 333 (Madsen, J., concurring and dissenting).

25 No. 98835-8

appropriations bill. Pursuant to Locke, that presumption can be overcome upon a

showing that the legislature has impermissibly attempted to circumvent the

governor’s veto power. 139 Wn.2d at 141.

The form and substance of the legislation at issue here do not show such

impermissible legislative manipulation or circumvention of the governor’s veto

power. Section 220’s format does not undermine the governor’s veto power and

the fuel type condition does not stand on its own as a “whole” budget proviso. Nor

did that format prevent the governor from exercising his appropriation item veto: if

he wanted to strike the fuel type condition, he could have vetoed each whole

appropriation (meaning each full subsection) in which that condition appeared.

We therefore affirm the trial court’s grant of summary judgment to the

legislature on this issue.

II. THE FUEL TYPE CONDITION DOES NOT VIOLATE ARTICLE II, SECTION 19

Washington’s constitution restricts legislation to a single subject. WASH.

CONST. art. II, § 19 (“No bill shall embrace more than one subject, and that shall be

expressed in the title.”). This constitutional restriction applies to all legislation,

including appropriations bills. Flanders v. Morris, 88 Wn.2d 183, 188, 558 P.2d

769 (1977). It promotes clarity in legislation and helps prevent logrolling. Id. at

187.

26 No. 98835-8

As a result, we have “repeatedly indicated the Legislature may not abolish or

adopt substantive law in a[ nonsubstantive] appropriations bill” because doing so

would undermine both of section 19’s constitutional purposes. 12 Lowry, 131 Wn.2d

at 328 n.11. We have also come to that conclusion because “[a]n appropriation bill

is not a law in its ordinary sense” but “pertain[s] only to the administrative

functions of government,” and so it is an improper vehicle for the passage of

substantive legislation. State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 272, 148

P. 28 (1915).

Governor Inslee argues that the fuel type condition violates article II, section

19, mainly because it constitutes substantive law; specifically, the governor asserts

that the fuel type condition amends RCW 47.66.040(2), which lists the factors that

WSDOT must consider when deciding which multimodal program to fund.

Governor’s Opening Br. at 40.

We disagree. We enforce constitutional subject matter limits on the

legislature’s appropriations power. But we have long recognized that “greater

latitude must be granted the legislature in enacting multi-subject legislation under

12 See, e.g., Inlandboatmen’s Union of Pac. v. Dep’t of Transp., 119 Wn.2d 697, 710, 836 P.2d 823 (1992); Retired Pub. Emps. Council of Wash. v. Charles, 148 Wn.2d 602, 629, 62 P.3d 470 (2003); Locke, 139 Wn.2d at 145; Serv. Emps. Int’l Union, Local 6 v. Superintendent of Pub. Instruction, 104 Wn.2d 344, 705 P.2d 776 (1985); Flanders, 88 Wn.2d at 187-88; State ex rel. Wash. Toll Bridge Auth. v. Yelle, 54 Wn.2d 545, 551, 342 P.2d 588 (1959).

27 No. 98835-8

the appropriations bill title than any other, since the purpose of appropriations bills

is to allocate monies for the State’s multitudinous and disparate needs.” Flanders,

88 Wn.2d at 188. And “allocat[ion of] monies for the State’s . . . needs” is, of

course, a core power of the legislature. WASH. CONST. art. VIII, § 4 (“No moneys

shall ever be paid out of the treasury of this state, or any of its funds, or any of the

funds under its management, except in pursuance of an appropriation by law.”);

State ex rel. Peel v. Clausen, 94 Wash. 166, 173, 162 P. 1 (1917) (noting that under

article VIII, section 4, “no moneys can be paid out without the sanction of the

legislative body”).

In fact, the legislature maintains “exclusive power” over the public fisc.

Decker, 191 Wash. at 400. This includes “‘the right to specify how appropriated

moneys shall be spent.’” Kate Stith, Congress’ Power of the Purse, 97 YALE L. J.

1343, 1353-54 (1988) (quoting RAOUL BERGER, EXECUTIVE PRIVILEGE: A

CONSTITUTIONAL MYTH 113 (1974)); Flanders, 88 Wn.2d at 191 (recognizing that

“in certain instances the legislature must place conditions and limitations on the

expenditures of monies”); accord 1987 Op. Att’y Gen. No. 6, at 12 (“[T]he

Legislature is generally free, when making appropriations in an appropriation act, to

limit the use to which the money appropriated can be put by state agencies and

institutions.”). “All appropriations thus may be conceived of as lump-sum grants

with ‘strings’ attached. These strings, or conditions of expenditure, constitute

28 No. 98835-8

legislative prescriptions that bind the operating arm of government.” Stith, supra,

at 1353-54.

Those “strings” allow the legislature to fulfill its constitutional role and to

check the power of the executive. See Juvenile Dir., 87 Wn.2d at 242-43.

But there is a difference between such “strings,” which the legislature may

include in an appropriations bill, and “substantive law,” which it may not. We have

“decline[d] to adopt a categorical definition of ‘substantive law,’” but the Locke

court surveyed our cases and summarized three nonexclusive factors that “may . . .

indicate substantive law is [impermissibly] present” in an appropriations bill: (1)

“where the policy set forth in the budget has been treated in a separate substantive

bill,” (2) where “its duration extends beyond the two year time period of the

budget,” or (3) where “the policy defines rights or eligibility for services.” 139

Wn.2d at 147. The first Locke factor overlaps with the rule that a provision in an

appropriations bill violates article II, section 19 if it “abolish[es] or amend[s]

existing law.” Flanders, 88 Wn.2d at 188; Serv. Emps. Int’l Union, Local 6, 104

Wn.2d 344, 351, 705 P.2d 776 (1985); see also State ex. rel. Wash. Toll Bridge

Auth. v. Yelle, 54 Wn.2d 545, 551, 342 P.2d 588 (1959).

None of these factors are present here.

The governor begins with the first Locke consideration. He argues that the

fuel type condition violates article II, section 19 because it substantively amends

29 No. 98835-8

RCW 47.66.040(2), which lists the criteria WSDOT must consider when deciding

which multimodal programs and projects to grant-fund. Governor’s Opening Br. at

40. Those mandatory criteria include “federal and state air quality requirements”

and “energy efficiency issues.” RCW 47.66.040(2)(a)-(b). “Fuel type” is absent

from that list of mandatory criteria. Id. The governor contends that fuel type is an

“important component of air quality and energy efficiency,” so the fuel type

condition effectively amends the law to “omit” this consideration. Governor’s

Opening Br. at 41. But he points to no evidence in the record showing that

WSDOT ever considered fuel type within those mandatory criteria. And there

appear to be no WACs or other regulations implementing RCW 47.66.040, much

less any rules or regulations establishing that fuel type has been deemed “relevant

and influential,” as the governor claims. Id. at 43. 13

The governor’s argument assumes that because fuel type could relate to

some of the mandatory criteria listed in a separate, substantive law, the legislature

cannot even mention fuel type in an appropriations bill. But that would mean that

13 As the legislature points out, “[t]he 1993 Legislature”—which first enacted RCW 47.66.040—“was unlikely to have thought about fuel type at all, given that it was not until 1997 that the first mass-produced hybrid car came to market.” Resp. Br. at 30 (citing Hiroko Tabuchi, Toyota Aims to Remain King of the Hybrids, N.Y. TIMES, Jan. 6, 2011, https://www.nytimes.com/2011/01/07/business/global/07toyota.html). It appears WSDOT has dutifully considered “energy efficiency issues” and “air quality requirements” under RCW 47.66.040(2) for nearly 30 years without ever considering fuel type.

30 No. 98835-8

the legislature could never enact an exclusive list of mandatory eligibility criteria

for a program because the executive branch could always add new eligibility

criteria—criteria that the legislature never considered—simply by asserting that

such new criteria might relate to existing statutory criteria. Under that view, the

legislature could never condition the expenditure of funds on the executive’s strict

compliance with the terms of a statute.

That cannot be. “‘Administrative rules or regulations cannot amend or

change legislative enactments.’” Dep’t of Ecology v. Campbell & Gwinn, LLC,

146 Wn.2d 1, 19, 43 P.3d 4 (2002) (quoting Dep’t of Ecology v. Theodoratus, 135

Wn.2d 582, 600, 957 P.2d 1241 (1998)). Neither can unpublished administrative

policies and preferences.

The legislature’s view is far more consistent with our precedent regarding

the nature of appropriations bills. It argues that the fuel type condition does not

substantively amend the grant eligibility criteria imposed by RCW 47.66.040(2)

but “merely prohibits an administrative agency from adopting a new [criterion].”

Resp. Br. at 33. We agree: the fuel type condition tells WSDOT how to carry out

its functions under RCW 47.66.040(2) during the 2019-21 biennium. Like other

traditional appropriation conditions, the fuel type condition “pertain[s] only to the

administrative functions of government.” Blakeslee, 85 Wash. at 272. It does not

conflict with the plain text of RCW 47.66.040 or change the way WSDOT has

31 No. 98835-8

considered that statute’s mandatory criteria for nearly 30 years. Cf. Flanders, 88

Wn.2d at 184-85, 189. Nor does it preclude WSDOT from rejecting grant

applications for failure to meet air quality standards or due to insufficient energy

efficiency. It provides only that WSDOT may not consider a new, extratextual

factor when allocating multimodal transportation grants in the 2019-21 biennium.

The governor next addresses the second Locke consideration, whether the

“duration” of the challenged condition necessarily “extends beyond the two-year

time period of the budget.” Locke, 139 Wn.2d at 147. He argues that the

legislature’s decision to include the fuel type condition in section 220(5)(a)

“demonstrates an intent to extend beyond the current biennium.” 14 Governor’s

Opening Br. at 42. And we have certainly held that a provision in an appropriations

bill violates article II, section 19 when it “creates a rule of action, a segment of

substantive law, to be effective far beyond the period of the biennium in which

appropriations can constitutionally have effect.” Wash. Toll Bridge Auth., 54

Wn.2d at 551.

14 The legislature argues that the governor waived argument on the second two Locke factors since he raised them only on appeal. Resp. Br. at 38, 40. The legislature is partially incorrect: the governor discussed the first Locke factor in his cross motion for summary judgment, CP at 87, and he discussed the first two Locke factors at the motion hearing. VRP at 19-20. As to the third factor, it is part of a constitutional issue that can be raised for the first time on appeal under RAP 2.5(a)(3). In addition, both parties briefed the third factor, so this court is well informed.

32 No. 98835-8

But the fuel type condition poses no such problems. First, as discussed

above, the fuel type condition does not constitute “a segment of substantive law.”

Id.

The fuel type condition does not extend too far into the future, either. In

Washington Toll Bridge Authority, an appropriations bill designated a new,

permanent source of payment for bonds for a second Lake Washington bridge. But

a different payment source for those bonds had already been specified in a

preexisting substantive statute. Id. at 550. We held that the appropriation bill’s new

designation—which changed the payment source from that specified in the

preexisting statute and which purported to change that payment source for “an

indefinite period,” permanently—violated article II, section 19. Id. But the

governor points to no comparable language extending the fuel type condition

beyond the biennium to which the $77,679,000 appropriation applies in this case.

The condition is completely tied to agency decisions made during that time-limited

biennium. 15

15 Section 220(5)(a) does contain the sentence, “Additionally, when allocating funding for the 2021-2023 biennium, no more than thirty percent of the total grant program may directly benefit or support one grantee.” (Emphasis added.) The governor argues that this sentence attempts to direct activity beyond the biennium. Governor’s Opening Br. at 43. But this condition addresses only actions by WSDOT during the 2019-21 biennium. Further, the governor did not assign error to this particular sentence; he argued only that the fuel type condition violated article II, section 19. Id. at 3.

33 No. 98835-8

Finally, the governor turns to the third Locke consideration and argues that

the fuel type condition, “if effective, would define rights or eligibility for these

grant programs.” Governor’s Opening Br. at 43. But as the legislature points out,

Locke’s third substantive law factor is whether a provision “‘define[s] rights or

eligibility for services.’” Resp. Br. at 40 (quoting Locke, 139 Wn.2d at 147

(emphasis added)). That factor bars the legislature from enacting an appropriations

bill that includes a substantive provision impacting individuals’ rights to or

eligibility for social assistance programs. Locke, 139 Wn.2d at 147 (copayment

provision in appropriations bill “add[ed] restrictions to public assistance

eligibility”); Flanders, 88 Wn.2d at 185 (appropriations provision defined

eligibility for services where it created an age requirement that did not exist in the

codified welfare statute). But the fuel type condition does not impact anyone’s

eligibility for “services”—it impacts an executive agency’s grant allocation

decision. Nor do the fuel type condition and the grant funding program create any

“rights.” See Retired Pub. Emps. Council, 148 Wn.2d at 631 (provision in

appropriations bill changing state retirement system contribution rates was not

substantive law because state employees “do not have specific pension rights in the

physical system and individual statutes in effect when they began work”). And the

fuel type condition does not “define” anything.

34 No. 98835-8

Thus, the fuel type condition does not “conflict with the general law as

codified.” Flanders, 88 Wn.2d at 191. It does not purport to create law that extends

past the 2019-21 biennium. And it does not “define[] rights or eligibility for

services.” Locke, 139 Wn.2d at 147. While Locke’s “list of indicia of

substantiveness is not exhaustive,” the governor offers no other argument that the

fuel type condition constitutes substantive law. Retired Pub. Emps. Council, 148

Wn.2d at 631.

We therefore conclude that the fuel type condition in ESHB 1160, section

220(1)(a), (b), (2), (3)(a), (5)(a), (7), and (9) complies with article II, section 19.

III. THE FUEL TYPE CONDITION DOES NOT VIOLATE ARTICLE II, SECTION 37

Article II, section 37 provides, “No act shall ever be revised or amended by

mere reference to its title, but the act revised or the section amended shall be set

forth at full length.” The governor argues that the fuel type condition violates this

constitutional provision because it amends RCW 47.66.040 without setting forth

that statute in full. Governor’s Opening Br. at 45-46. We disagree.

Under the two-step framework we apply to article II, section 37 challenges,

an enactment does not impermissibly revise or amend existing law if it (1) is a

“complete act” and (2) does not “render[] erroneous” “a straightforward

determination of the scope of rights or duties under the existing statutes.” Wash.

Educ. Ass’n v. State, 93 Wn.2d 37, 40-41, 604 P.2d 950 (1980) (WEA I) (citing

35 No. 98835-8

Naccarato v. Sullivan, 46 Wn.2d 67, 74, 278 P.2d 641 (1955); Weyerhaeuser v.

King County, 91 Wn.2d 721, 731, 592 P.2d 1108 (1979)). The first step of this

analysis “make[s] sure the effect of new legislation is clear.” El Centro de la Raza

v. State, 192 Wn.2d 103, 129, 428 P.3d 1143 (2018) (plurality opinion) (quoting

Amalg. Transit Union Local 587 v. State, 142 Wn.2d 183, 245, 11 P.3d 762

(2000)). The second step ensures that readers need not conduct “a thorough search

of existing laws” “in order to understand [the new provision’s] effect on other

provisions.” Id. at 131-32.

Turning to the first inquiry, the fuel type condition is “complete in itself,”

Amalg., 142 Wn.2d at 246, because “the scope of the rights or duties created or

affected by the legislative action can be determined without referring to any other

statute or enactment.” WEA I, 93 Wn.2d at 40. The fuel type condition neither

creates nor affects any rights. It does impose a duty on WSDOT to refrain from

considering fuel type in the grant selection process for the grant programs to which

it applies. But the scope of that duty is contained within the condition and “can be

determined without referring to any other statute or enactment.” Id.; see also El

Centro, 192 Wn.2d at 129; Citizens for Responsible Wildlife Mgmt. v. State, 149

Wn.2d 622, 642, 71 P.3d 644 (2003) (CRWM); State v. Manussier, 129 Wn.2d 652,

663, 921 P.2d 473 (1996); Wash. Educ. Ass’n v. State, 97 Wn.2d 899, 903, 652

P.2d 1347 (1982) (WEA II); Spokane Grain, 59 Wash. at 82. Because the fuel type

36 No. 98835-8

condition is independent from, and not in conflict with, the mandatory

considerations imposed by RCW 47.66.040, it is not necessary to “search out” that

statute in order to understand the scope of the proscription against consideration of

fuel type in the grant selection process for the 2019-21 biennium. El Centro, 192

Wn.2d at 131.

We turn next to the test’s second prong: would “a straightforward

determination of the scope of rights or duties under the existing statutes be

rendered erroneous by the new enactment?” WEA I, 93 Wn.2d at 41 (citing

Weyerhauser, 91 Wn.2d at 731). This second prong is often more difficult to apply,

because while “‘“[n]early every legislative act of a general nature changes or

modifies some existing statute, either directly or by implication,’” that does not

necessarily mean that the legislation is unconstitutional.” El Centro, 192 Wn.2d at

128 (alteration in original) (quoting CRWM, 149 Wn.2d at 640 (quoting Holzman

v. City of Spokane, 91 Wash. 418, 426, 157 P. 1086 (1916))). See also WEA II, 97

Wn.2d at 906 (“Undoubtedly, modification of existing laws by a complete statute

renders the existing law by itself ‘erroneous’ in a certain sense.”). Thus, the

inquiry under this prong is more a matter of degree than an absolute. CRWM, 149

Wn.2d at 643 (explaining that a new enactment did not “alter preexisting rights or

duties to an impermissible degree”); WEA II, 97 Wn.2d at 906 (explaining that the

37 No. 98835-8

degree to which a new enactment may have failed to disclose its effect on existing

statutes was “not of constitutional magnitude”).

We applied these principles in Washington Education Association. In that

case, a “straightforward reading” of the existing substantive statutes indicated that

school districts had “the power to spend funds, from whatever source, as they

choose on teacher salaries.” WEA I, 93 Wn.2d at 41. But a provision in a 1979

appropriations bill purported to bar school districts from increasing teacher salaries

beyond specific limits “‘from any fund source.’” Id. at 38 (quoting LAWS OF 1979,

1st Ex. Sess., ch. 270, § 100(1)). We concluded that the appropriations provisions

rendered erroneous a straightforward understanding of the school districts’ powers

under the preexisting statutes. Id. at 40; see also El Centro, 192 Wn.2d at 130-31

(statute stating collective bargaining rights were granted “to ‘any county or

municipal corporation, or any political subdivision of the state of Washington,’

except those covered by other collective bargaining laws” failed prong two of the

test because it failed to set forth the “other” collective bargaining laws affected,

thereby requiring “a thorough search of existing laws in order to understand the

[Charter School] Act’s effect on other provisions of chapter 41.56 RCW”).

In contrast, the preexisting statute here lists several criteria that “shall be

considered” by WSDOT “in selecting programs and projects” for funding from the

multimodal transportation account. RCW 47.66.040(2). “Fuel type” is not among

38 No. 98835-8

them. A reader’s straightforward understanding of the duties imposed by RCW

47.66.040 is not rendered erroneous by the fuel type condition because the fuel

type condition does not alter the statute’s criteria or conflict with them. To the

extent that the fuel type condition remains silent on “how it relates to the rest of

[RCW 47.66.040], [that silence is] . . . not of constitutional magnitude.” WEA II,

97 Wn.2d at 906; see also CRWM, 149 Wn.2d at 643.

At most, the fuel type condition “supplements” RCW 47.66.040(2). The

state constitution permits this: “[c]omplete acts” that “supplement prior acts or

sections thereof without repealing them . . . are excepted from section 37.” CRWM,

149 Wn.2d at 642 (citing Naccarato, 46 Wn.2d at 75); Manussier, 129 Wn.2d at

664-65. As discussed above, the mere possibility that fuel type might be one of

numerous conceivable aspects of “energy efficiency issues” or “federal and state

air quality requirements” does not transform fuel type into a mandatory criterion

under the statute.

The goal of article II, section 37 is to “‘protect the members of the

legislature and the public against fraud and deception; not to trammel or hamper

the legislature in the enactment of laws.’” CRWM, 149 Wn.2d at 640

(quoting Spokane Grain, 59 Wash. at 82). This goal is especially important in the

appropriations bill context, considering the “must-pass” nature of such omnibus

funding bills as well as the connection between appropriations bills and the

39 No. 98835-8

statutorily created programs they fund. See Locke, 139 Wn.2d at 147 n.6 (noting

that “[a]n operating budget bill is essentially a compulsory outcome of any

legislative session”); Flanders, 88 Wn.2d at 188. The fuel type condition complies

with these goals. It is “complete in itself” and its only “impact on existing laws” is

indirect: it bars WSDOT from considering a new, extrastatutory factor in making

multimodal grant determinations during the 2019-21 biennium. Amalg., 142 Wn.2d

at 246.

We hold that the fuel type condition complies with article II, section 37.

CONCLUSION

This case requires the court to exercise two of our most fundamental duties:

to “delineate and maintain the proper constitutional balance between the coordinate

branches of our State government with respect to the veto” and, more broadly, to

interpret the constitution faithfully. Lowry, 131 Wn.2d at 313; Juvenile Dir., 87

Wn.2d at 241.

We hold that the Washington Legislature enacted the fuel type condition

pursuant to its constitutional authority to appropriate funds and to control the

expenditure of those funds. Governor Inslee exceeded his article III, section 12

veto power by striking the fuel type condition, which formed only one part of each

appropriation item in which it appeared. Further, the fuel type condition does not

constitute substantive law smuggled into a budget bill in violation of article II,

40 No. 98835-8

section 19; it is a valid legislative limit on an executive agency’s expenditure of

appropriated funds. And the fuel type condition does not amend any existing law

without setting forth that law in full; it therefore complies with article II, section

37.

We affirm the superior court’s orders on summary judgment in favor of the

legislature.

WE CONCUR:

41 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

No. 98835-8

YU, J. (dissenting) — It is our constitutional duty “to uphold both the

power of the Legislature to write legislation as it may choose, and the power of the

Governor to exercise the general and line item veto.” Wash. State Legislature v.

Lowry, 131 Wn.2d 309, 313, 931 P.2d 885 (1997). To fulfill this duty, we must

address the most “difficult and controversial aspect of relations between our

branches of government.” Id. at 312. The holdings of Lowry did so, and did so

correctly. But dicta from a footnote in Lowry made it necessary for the court to

further refine its analysis of the governor’s line item veto power in Locke. Wash.

State Legislature v. State, 139 Wn.2d 129, 142, 985 P.2d 353 (1999) (Locke)

(discussing “Lowry’s footnote 8,” 131 Wn.2d at 323 n.8). Yet Locke preserved the

explicit, constitutional distinction between the general veto power and the line item

veto power, which the court had clearly recognized in Lowry. CONST. art. III, § 12.

We should continue this line of consistent adjudication in order to fulfill our

“constitutional duty to act as an impartial referee of constitutional disputes between

1 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

the legislative and executive branches.” Lowry, 131 Wn.2d at 330-31. Yet today,

the majority erodes the distinction between general and line item vetoes by

elevating dicta from a footnote in Lowry above our own disposition of that case.

See majority at 12 & n.5, 13 & n.6 (quoting Lowry, 131 Wn.2d at 323 n.8). It does

not acknowledge the significant shift in law effected by its analysis today.

I would continue to apply Lowry’s holdings, rather than its dicta. Therefore,

I would uphold the governor’s veto of the “fuel type condition” in section 220 of

the 2019 transportation appropriations bill. See LAWS OF 2019, ch. 416,

§ 220(1)(a), (b), (2), (3)(a), (5)(a), (7), (9) (“Fuel type may not be a factor in the

grant selection process.”), 201-02 (governor’s partial veto message). The fuel

type condition was a whole, “nondollar budget proviso[ ]” and thus an

“appropriation item” subject to the governor’s line item veto. Lowry, 131 Wn.2d

at 325; CONST. art. III, § 12. Moreover, without the governor’s veto, section 220

of the 2019 transportation appropriations bill would be unconstitutional because

the fuel type condition violated article II, sections 19 and 37. I respectfully dissent.

A. The governor’s veto of the fuel type condition was within his article III, section 12 power to veto appropriation items

Before a bill “becomes a law,” it must be “presented to the governor,” who

may either “sign it” or “return it, with [their] objections” to the legislature. CONST.

2 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

art. III, § 12. The authority to return legislation with objections is commonly

known as the governor’s veto power. The veto power has existed, in some form,

“since statehood.” Lowry, 131 Wn.2d at 316.

The governor has both a “general veto power” (which allows the governor to

veto “a whole bill or a section of a bill”) and a “line item veto power,” which

“extends to ‘appropriation items,’” even if they are “less than an entire section.”

Id. at 315-16; CONST. art. III, § 12. Our precedent has clarified that “appropriation

items” include “budget provisos”—both “‘dollar provisos’” (which “‘condition[ ]

the appropriation to an agency on compliance with legislative direction that certain

funds be spent or not be spent’”) and “‘nondollar provisos’” (which “‘make[ ] no

reference to a specific dollar amount’”). Locke, 139 Wn.2d at 138 (quoting Lowry,

131 Wn.2d at 314). The governor’s veto is subject to override by a two-thirds

majority of the legislature, which may convene an “extraordinary session . . . solely

to reconsider any bills vetoed.” CONST. art. III, § 12.

In this case, the governor vetoed a single sentence, which appeared in

multiple subsections of the 2019 transportation appropriations bill: “Fuel type may

not be a factor in the grant selection process.” LAWS OF 2019, ch. 416, § 220(1)(a),

(b), (2), (3)(a), (5)(a), (7), (9) (boldface and italics omitted), 201. The legislature

did not attempt to override the governor’s veto, choosing instead to file this

declaratory judgment action. The question is whether the fuel type condition

3 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

“comprised a whole ‘appropriation item.’” Majority at 5 (quoting CONST. art. III,

§ 12). I would hold that it did, so the fuel type condition was properly subject to

the governor’s line item veto.

The majority reaches the opposite conclusion, asserting “that a veto of

‘anything less than the whole proviso’ is invalid,” and that “we start with the

presumption that a ‘whole proviso’ is equivalent to a ‘full subsection[ ] of the

section of an appropriations bill.’” Id. at 12-13 (alteration in original) (quoting

Lowry, 131 Wn.2d at 323 n.8). These assertions distort Lowry to the point of

implicitly disavowing it. In doing so, the majority shifts the careful balance

between legislative and executive power set forth by our precedent.

1. The majority’s purported clarification of Lowry is irreconcilable with Lowry itself

The majority’s analysis in this case elevates dicta from a footnote in Lowry

(footnote 8) above contrary holdings in the body of that opinion. The majority

does this in a lengthy footnote of its own, which purports to “clarify” Lowry:

The Lowry court made this statement [(that “we start with the presumption that a ‘whole proviso’ is equivalent to a ‘full subsection[ ] of the section of an appropriations bill’”)] in a footnote, which reads:

The budget provisos to which the Governor’s line item veto extends include full provisos to an appropriations bill, that is, full subsections of the section of an appropriations bill. We do not believe an

4 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

“appropriation[ ] item” may be a sentence, phrase, letter, digit, or anything less than the whole proviso.

131 Wn.2d at 323 n.8. We agree in full with the first sentence of the footnote. It must be noted, however, that there is some tension between the second sentence of the footnote and Lowry’s outcome. Specifically, the Lowry court upheld the veto of several single sentences. Id. at 314 & n.2. Most of those sentences were also “full subsections”—but one was not. Id. at 324 (upholding veto of single sentence contained within larger subsection). And the Lowry court referred to the single vetoed sentence that appeared within a larger paragraph of text as, itself, a “subsection.” Id. We take this opportunity to clarify Lowry and emphasize that a sentence that is “less than [a] whole proviso” may not be vetoed as an appropriation item. Id. at 323 n.8.

Id. at 13 n.6 (some alterations in original). I cannot agree. Lowry’s footnote 8 is

not merely in “tension” with Lowry’s “outcome”—it is flatly contradicted by the

analysis in the body of the Lowry majority opinion. Id. Thus, by following

footnote 8’s dicta, the majority implicitly disavows Lowry’s holdings.

As the majority acknowledges, Lowry upheld the governor’s “veto of [a]

single sentence contained within [a] larger subsection.” Id.; Lowry, 131 Wn.2d at

324-25 (considering LAWS OF 1994, 1st Spec. Sess., ch. 6, § 610(5)(a)). Yet

footnote 8, as applied by today’s majority, would hold that such a veto was subject

to a “presumption” of invalidity, because a “sentence” that is not designated as a

“full subsection[ ]” is presumptively not a “whole proviso.” Majority at 13; Lowry,

131 Wn.2d at 323 n.8. To overcome this presumption, the governor in Lowry

should have been required to show that “‘[t]he Legislature’s designation of a

5 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

section’” was “‘obviously designed to circumvent the Governor’s veto power.’”

Majority at 12 (alteration in original) (internal quotation marks omitted) (quoting

Lowry, 131 Wn.2d at 320).

But that is not what happened in Lowry. Instead, the court upheld the

governor’s veto of a “single sentence contained within a larger subsection” without

even considering whether there was legislative circumvention, much less

determining that the governor had made such a showing. Id. at 13 n.5; see Lowry,

131 Wn.2d at 324-25. The reason for this apparent inconsistency is that in the

process of elevating Lowry’s footnote 8, the majority takes Lowry’s discussion of

legislative circumvention out of context.

As explained by Lowry, the governor’s constitutional veto power has two

components: a “general veto authority over legislation and a distinct veto power

over ‘appropriation items.’” 131 Wn.2d at 315 (emphasis added) (quoting CONST.

art. III, § 12). The general veto power applies only to “a whole bill or a section of

a bill.” Id. at 315-16. By contrast, the “line item” veto power “also extends to

‘appropriation items.’” Id. at 316 (emphasis added). “By its very specific

language, article III, section 12 envisions appropriation items as something less

than an entire section of an appropriations bill.” Id. at 322 (emphasis added);

CONST. art. III, § 12 (governor “may not object to less than an entire section,

6 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

except that if the section contain one or more appropriation items [they] may object

to any such appropriation item or items”).

Thus, when Lowry stated that “[t]he Legislature’s designation of a section is

conclusive unless it is obviously designed to circumvent the Governor’s veto

power,” it did so only in the context of the governor’s general veto power, which

allows the governor to veto whole sections. 131 Wn.2d at 320, 317-21.

Legislative circumvention was simply not part of Lowry’s separate discussion of

the line item veto power. Id. at 321-23. Contra majority at 11-14.

Maintaining the distinction between general and line item vetoes is an

important feature of Washington law because a distinctive feature of our state’s

budget legislation is that “[t]he Legislature has not employed a true programmatic

or line item budget.” Lowry, 131 Wn.2d at 321. Instead, “[t]he Legislature has

chosen to make general agency appropriations with provisos for policy or specific

agency programs in budget bills, rather than setting out more specific

programmatic appropriations where each program in the budget is found in a

separate section of a budget bill.” Id. at 321-22. Thus, Lowry did not simply

commit an oversight when it confined its discussion of legislative circumvention to

the general veto power. To the contrary, Lowry took a reasoned approach that

recognized the distinct constitutional role of the governor’s line item veto power:

7 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

Because the purpose of the Governor’s “line item” veto is to excise line items in appropriations bills, we should give effect to such a purpose. The Legislature frustrates such a purpose, however, if it drafts budget bills as lump sum appropriations to agencies. The only feature of modern legislative bill drafting in Washington that resembles the traditional budget line item is the budget proviso.

Consequently, we hold that any budget proviso with a fiscal purpose contained in an omnibus appropriations bill is an “appropriations item” under article III, section 12.

Id. at 323.

This analysis was “our own disposition of the case” in Lowry, which should

control over contrary dicta in a footnote that was “‘unnecessary to decide the

case.’” Johnson v. Wash. State Liquor & Cannabis Bd., 197 Wn.2d 605, 618, 486

P.3d 125 (2021) (internal quotation marks omitted) (quoting In re Pers. Restraint

of Domingo, 155 Wn.2d 356, 366, 119 P.3d 816 (2005)). Yet, without explanation,

the majority chooses to follow the footnote. This does not “clarify Lowry.”

Majority at 13 n.6. It defies Lowry, eroding the constitutional distinction between

general vetoes and line item vetoes.

2. The majority’s reliance on the 62d Amendment and Locke is misplaced

In addition to Lowry’s footnote 8, the majority relies on the 62d Amendment

and Locke to bolster its “deference to the legislature’s formatting decisions” in the

context of line item vetoes. Id. at 11. However, as Lowry explained,

8 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

The intent of S.J.R. [(Senate Joint Resolution)] 140, enacted in 1974 as the 62nd Amendment to the Washington Constitution, was to restore the veto power of the Governor to what it was understood to be prior to [State ex rel.] Ruoff [v. Rosellini, 55 Wn.2d 554, 348 P.2d 971 (1960)]. Plainly, at that time, the Governor had a line item veto and an “item” was something less than a full section of a bill.

Lowry, 131 Wn.2d at 322 (emphasis added) (citation omitted) (citing SENATE

JOURNAL, 43d Leg., 3d Ex. Sess., at 89 (Wash. 1974)).

Thus, the 62d Amendment required greater deference to the legislature’s

formatting choices in the context of the general veto power. However, Lowry

explicitly “reject[ed] the dissent’s unconventional notion that the 62nd Amendment

repealed the Governor’s line item veto.” Id. (emphasis added). Instead, “[t]he

‘check’, as it has always been, will be the Legislature’s two-thirds override.”

Wash. Fed’n of State Emps., AFL-CIO, Council 28 v. State, 101 Wn.2d 536, 547,

682 P.2d 869 (1984). The legislature did not attempt an override here, but “these

constitutional arrangements are for the people to determine, not this court. If these

arrangements become unsatisfactory or subjected to abuse, the people are capable

of making desired changes.” Id.

The majority’s reliance on Locke is also misplaced because its

characterization of that case, like its characterization of Lowry, is inaccurate.

Locke did not eliminate Lowry’s distinction between general and line item vetoes,

9 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

as the majority suggests. See majority at 14 (citing Locke, 139 Wn.2d at 141).

In fact, Locke explained that

Lowry directs that the Governor’s line item veto power is limited to “whole provisos.” The issue then becomes what is a whole proviso? Lowry’s footnote 8, although commenting on the issue, does not adequately answer the question as designating a “full subsection” can be too easily manipulated by the mere placement of a number or letter, or artificial division into paragraphs.

139 Wn.2d at 142 (emphasis added) (citation omitted). Thus, Locke reaffirmed

Lowry’s holdings (rather than its footnote 8 dicta) by recognizing that “the

Governor’s line item veto power extends to whole provisos, but the parameters of

such provisos are not necessarily determined by artificial divisions by number or

letter; rather, an examination of the language in question and the operative effect of

such language indicates the nature of the proviso.” Id. at 143 (emphasis added).

Given this context, the majority is simply wrong in its claim that Locke held

“only an obvious attempt to circumvent the veto power will overcome deference to

the legislature’s designation of the scope of a whole appropriation item.” Majority

at 14 (emphasis added). To the contrary, Locke itself “disregard[ed] deferring to

the Legislature’s designation of [the relevant language] as a single and complete

‘subsection,’” noting a “specter of circumvention” but relying on “the practical

impact” of the language. 139 Wn.2d at 141 (emphasis added). To do otherwise

“would encourage legislators to weave substantive policy provisions and fiscal

10 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

measures into appropriations bills, thereby legitimizing Byzantine bill drafting in

appropriations measures.” Lowry, 131 Wn.2d at 329.

If the majority believes that Lowry, as refined by Locke, is so incorrect and

harmful “that it must be rejected, despite the many benefits of adhering to

precedent,” then it should do so explicitly, consistent with principles of stare

decisis. State v. Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016). However, I do

not believe that Lowry and Locke are incorrect or harmful. Instead, I believe that

they are well-reasoned decisions whose proper application has been hindered by

one confusing, contradictory statement of dicta confined to a single footnote.

Therefore, I would continue to apply Lowry’s and Locke’s holdings. I would also

take this opportunity to make it clear that footnote 8 to the Lowry majority opinion

contains misleading dicta, not controlling precedent.

2. The governor acted within his line item veto power to veto the fuel type condition because it was a whole, nondollar budget proviso

Based on the foregoing, I would hold that the governor did not exceed the

scope of his line item veto power when he vetoed the fuel type condition.

The line item veto extends to any “appropriation item.” CONST. art. III,

§ 12. We do not presume that an appropriation item is the same as a legislatively

designated subsection if the “practical impact” of the language in question is that

of a budget proviso. Locke, 139 Wn.2d at 141. A budget proviso, in turn, is

11 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

“‘language conditioning how an agency may spend an appropriation.’” Id. at 138

(quoting Lowry, 131 Wn.2d at 314). If the proviso “‘makes no reference to a

specific dollar amount,’” then it is a “‘nondollar’” proviso, but it is still an

appropriation item. Id. (quoting Lowry, 131 Wn.2d at 314).

In my view, the fuel type condition is not merely part of a larger proviso that

“relates directly to the appropriation amount that begins each subsection of section

220 in which the condition appears.” Contra majority at 23. Instead, its restriction

on the grant selection criteria operates as “a discrete condition from the restriction

that funds be used solely for certain grant programs and projects, even though they

appear in the same subsection and may be tangentially related.” Governor’s Reply

Br. at 12.

Therefore, I would hold that in language and operative effect, the fuel type

condition stands alone as a whole, nondollar budget proviso. Thus, it was within

the governor’s constitutional power to veto it.

B. The fuel type condition violated article II, sections 19 and 37

Because I would resolve this case on the basis of the veto power, as

discussed above, I would not reach the question of whether the fuel type condition,

if not vetoed, would be constitutional. However, I must briefly express my

disagreement with the majority’s analysis of the governor’s article II challenges to

the fuel type condition.

12 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

1. The fuel type condition violated article II, section 19 because it purported to amend substantive law in an appropriations bill

As the majority correctly recognizes, in accordance with article II, section 19

of the state constitution, “[a]n appropriations bill which ‘defines no rights’

certainly cannot abolish or amend existing law.” Flanders v. Morris, 88 Wn.2d

183, 188, 558 P.2d 769 (1977); see majority at 26-27. It is apparent to me that the

fuel type condition at issue here was an improper attempt to do just that with

respect to RCW 47.66.040(2).

RCW 47.66.040(2) sets forth baseline criteria that the Department of

Transportation “shall” consider “in selecting programs and projects,” including

“federal and state air quality requirements” and “energy efficiency issues.” In

modern transportation, fuel type is so intertwined with both of those considerations

that the fuel type condition would have “precluded consideration of an important

component of air quality and energy efficiency that the [Public Transportation]

Division is otherwise required to consider.” Governor’s Opening Br. at 41.

Yet the majority interprets RCW 47.66.040(2) not in accordance with the

legislature’s intent as expressed by the statute’s plain language but, instead, in

accordance with the state of hybrid car technology from almost 30 years ago. See

majority at 30 & n.13. I cannot join in this analysis. If it were necessary to do so,

I would hold that the fuel type condition violated article II, section 19.

13 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

2. The fuel type condition violated article II, section 37 by amending RCW 47.66.040 without so much as referencing it

Finally, article II, section 37 provides, “No act shall ever be revised or

amended by mere reference to its title, but the act revised or the section amended

shall be set forth at full length.” The fuel type condition clearly violated this

provision with respect to RCW 47.66.040.

First, it is not possible to determine “the rights or duties under the statute . . .

without referring to another statute.” Black v. Cent. Puget Sound Reg’l Transit

Auth., 195 Wn.2d 198, 205, 457 P.3d 453 (2020). Instead, a person reading the

fuel type condition would also need to independently know about, locate, and read

through RCW 47.66.040 to discover which criteria are permitted or required in the

grant selection process.

Moreover, “‘a straightforward determination of the scope of rights or duties

under the existing statutes [would] be rendered erroneous by’” the fuel type

condition. Id. (alteration in original) (internal quotation marks omitted) (quoting

El Centro de la Raza v. State, 192 Wn.2d 103, 129, 428 P.3d 1143 (2018)

(plurality opinion)). Any person who is aware of modern transportation

technology would certainly conclude that RCW 47.66.040(2) permits (perhaps

even requires) the Department of Transportation to consider fuel type in order to

14 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

fulfill its duty to consider energy efficiency and air quality issues. The fuel type

condition would render this plain reading of RCW 47.66.040 erroneous.

Thus, if it were necessary to reach the governor’s article II challenges to the

fuel type conditions, I would hold that the fuel type condition violated both section

19 and section 37.

“We should be steadfast in exerting a limited, and cautiously exercised,

judicial responsibility with respect to the veto power to make sure neither the

Legislature nor the Governor takes unfair advantage, and the balance our

constitution envisions endures.” Lowry, 131 Wn.2d at 331. Therefore, we should

be consistent in our adjudication, and when we must reject our precedent, we

should do so openly and explain why we are doing it. Today, I believe the

majority shifts the balance of power too far in favor of the legislature, and it does

so in a footnote based on dicta from another footnote.

In accordance with the holdings of Lowry and Locke, as well as the plain

language of article III, section 12, I would reverse the trial court and hold that the

governor’s veto of the fuel type condition here was a valid exercise of the

constitutional line item veto power. Thus, I respectfully dissent.

15 Washington State Legislature v. Inslee, No. 98835-8 (Yu, J., dissenting)

______________________________